This week, the United States Supreme Court agreed to review the decision in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), a significant labor decision that Honigman previously reported on here. In that case, the U.S. Court of Appeals for the D.C. Circuit held that President Obama’s three recess appointments to the five member National Labor Relations Board (NLRB) were not constitutionally valid. That court reasoned that the Senate was not technically in recess at the time of those appointments and, under the Constitution’s Recess Appointments Clause, the vacancy must arise during the Senate recess, not before it. The D.C. Circuit found that President Obama’s appointments of NLRB members Sharon Block, Terence Flynn and Richard Griffin, Jr. violated that clause and were invalid. As a result, the NLRB was without the required quorum of three members to act, which has raised issues with the validity of many of its decisions since the appointments.
The Supreme Court’s eventual ruling could have far-reaching effects. If the Court agrees that the appointments were unconstitutional, hundreds of NLRB decisions issued in the past several years would be invalidated, including a wide array of labor friendly rulings. In addition, affirming the D.C. Circuit would also effectively shut down the NLRB until enough valid appointments are made for it to operate with the required quorum of three members. Finally, the Court’s decision could affect the authority of various other government agencies staffed with recess appointees.
The Supreme Court will decide the Noel Canning case during its 2013-2014 term commencing in October 2013.